In so many ways the best trial lawyers prepare for trial as soon as they are assigned a new case. This absolutely includes developing relationships with your witnesses months, if not years, before you have to call them to the stand.
Our firm recently obtained a fantastic, very rare plaintiff verdict in a Racketeer Influenced and Corrupt Organizations Act jury trial. The great result required not only near Herculean efforts by my colleagues over four years – beating a motion to dismiss, tackling multiple motions for summary judgment, and handling every discovery issue under the sun—but also reliance on multiple third-party witnesses who, for different reasons, were never deposed and with whom we did not need to spend much time preparing prior to the trial. While we could always use a process, like subpoenas, to get the witnesses to the stand at trial, we did not need to. That is because we started to develop an ongoing relationship with these witnesses even if we had never met them before working on the case more than a year in advance of trial.
If you want to win at trial you need to focus on the evidence. This may sound like a straightforward fact, but it’s remarkable how few litigators keep this in mind. It does not matter what you, as the litigator, know or, at least, think you know what the case is about and how to prove your case. What matters is what evidence you will put in front of the fact-finder to meet your evidentiary burden. In almost all cases, that means putting forth testimony to support your claims or defenses. And in many cases, especially complex business matters that my colleagues and I focus on, it almost always means relying on third parties not within your or your client’s control.
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Court process and frequently even process in aid of arbitration can help you compel witnesses and, sometimes, that’s what you have to do (especially if the witnesses are adverse to your client). However, you want to avoid putting witnesses in any adversarial position with you. When relying on third-party witnesses, you should start by simply asking them if they will help. This not only takes time in terms of how many hours you need to devote to working with such witnesses, but also in how long in advance of a trial or hearing you should start working with such witnesses.
To prepare such witnesses well, a trial lawyer needs to put herself in the position of a typical third-party witness: not only does such witness by definition have no explicit interest in the action, testifying for one side may harm that witness’s relationship with the other side. At a minimum, testifying can be an inconvenience. And all but expert witnesses find testifying stressful: no one likes to be cross-examined.
So take the time to treat the witnesses the way you would want to be treated. Do not rush them. Address their concerns. Work around their schedules. Answer their questions, which may have nothing to do with the case or your other work on the trial, but if the witnesses are interested in something, address their interest.
Start working with them well, well, well in advance of when you have to ask them to take the stressful step of getting up on a witness stand, swearing to tell the truth, and then telling their stories to a judge, half a dozen or more jurors, or a panel of arbitrators, and allowing themselves to be subjected to cross-examination from an adversarial lawyer. Again, place yourself in the position of one of these third-party witnesses: would you not want to make life easier on someone who has been talking to you for months or longer, and attending to your concerns, compared to some trial lawyer you never met reaching out only weeks before trial?
Being a great trial lawyer requires a lot. When it comes to preparing third-party witnesses at trial, the best trial lawyers plan way ahead and spend the time they need addressing witness concerns.
John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].